2022 (12) TMI 916

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....he Order dated 02nd July, 2020 passed by the Adjudicating Authority (National Company Law Tribunal, Mumbai Bench, Mumbai) in C.P. (IB) No. 3194/NCLT/MB/2019, whereby the Adjudicating Authority has dismissed the Application filed by the Appellant herein. Brief Facts: Appellant's Submissions: 2. The Learned Counsel appearing for the Appellant submitted the brief facts which necessitated filing the present Appeal. He submitted that the Appellant filed the Application before the Adjudicating Authority invoking Section 9 of the I&B Code, 2016 seeking initiation of Corporate Insolvency Resolution Process against the Respondent (Corporate Debtor) for defaulting in making payment to the extent of Rs.65,20,061/-. 3. The Learned Counsel s....

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.... the goods to the Respondent, however, the goods supplied were defective and a dispute exists in respect of settlement of accounts of the transactions. The issue of dispute was raised by the Respondent in its reply dated 08.08.2019 to the demand notice issued by the Appellant dated 23.07.2019. 6. The Learned Counsel further submitted that the dispute in respect of the payment / transaction is civil in nature and not within the jurisdiction of this Tribunal. It is submitted that even otherwise the claim of the Appellant was barred by limitation. Further, the claim of the Appellant is not maintainable for the reason that the said claim has been set off by the invoices raised against the goods supplied by the Respondent to the Appellant. It....

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....s entitled for set off the claim made by the Appellant. (ii) It is an admitted fact that the Appellant issued a demand notice dated 23.07.2019 to the Respondent demanding a sum of Rs.65,20,061/- including interest. The Respondent vide its reply dated 08.08.2019 to the said demand notice stated that payment referred in the demand notice was set off on the ground that the Appellant lifted the goods from the Respondent and the Appellant was supposed the remit the tax amount to the Respondent so that proper invoices can be raised for the same. (iii) From the reply of the Respondent dated 08.08.2019, it is evident that the Respondent has not raised any dispute with regard to the very same claim amount prior to issuance of deman....

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....From the perusal of the invoices, the Appellant raised 13 invoices amounting to Rs. 45,34,589/- towards principal due. The Adjudicating Authority taken a stand that out of 13 invoices claimed by the Appellant 11 invoices are time barred i.e. the last invoice dated 23.08.2016 and the Application under Section 9 was filed on 26.08.2019, therefore, it is beyond 3 years as per Section 137 of the Limitation Act. However, the (2) invoices both dated 31.08.2016 are within the period of limitation, since the application filed on 26.08.2019. Having taken into consideration the 2 invoices which are within the period of limitation, the Adjudicating Authority failed to consider that the amount even for the 2 invoices satisfies the minimum threshold pre....